Flavio De Carvalho Pinto Viegas & Ors v Rosana Falcioni Cutrale & Anor
[2024] EWHC 2609 (Comm)
Flavio de Carvalho Pinto Viegas & Ors v The Estate of José Luis Cutrale & Anor
24 July 2023
[2023] EWHC 1896 (Comm)
High Court
A big lawsuit about a Brazilian orange juice cartel faced challenges. The court decided some claims were invalid because people involved had died or the paperwork wasn't right. Other claims were allowed to continue, even though the defendants argued they were too late.
Key Facts
- •Two claims (Viegas and Sanches) allege a Brazilian orange juice cartel (1999-2006).
- •Claimants are connected to Brazilian orange farmers.
- •Defendants are the estate of Mr. Cutrale Snr and Mr. Cutrale Jnr (directors/shareholders of Sucocítrico Cutrale Ltda).
- •Defendants applied to strike out claims, challenging jurisdiction and amendments.
- •Henshaw J found jurisdiction over Defendants, but not Sucocítrico Cutrale Ltda.
- •Court of Appeal refused permission to appeal this jurisdictional decision.
- •Defendants raised various grounds for strike-out, including limitation, claims by deceased persons, and lack of authority.
- •Amendments to the Viegas Claim added numerous claimants before service.
- •Brazilian law on limitation, succession, and representation were key issues.
Legal Principles
Court's power to disallow amendments made without permission.
CPR r. 17.2(1)
Test for disallowing amendments: Would permission have been granted if necessary?
White Book Commentary at 17.2.1
Principle of relation back: Amended claim deemed commenced on the same date as the original claim.
Section 35 of the Limitation Act 1980
Test for allowing amendments after limitation period: Reasonably arguable limitation defence; prejudice to defendant by relation back.
Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409; Chandra v Brooke North [2013] EWCA Civ 1559
Claims by deceased persons are nullities.
Kimathi v FCO [2017] 1 WLR 1081; Jogie v Sealy [2022] UKPC 32
Title to sue in England is governed by English law.
Jennison v Jennison [2023] 2 WLR 1017; High Commissioner for Pakistan v National Westminster Bank Plc [2015] EWHC 3052 (Ch)
Relief from sanctions: Three-stage test (seriousness, reason for default, all circumstances).
Denton v TH White Ltd [2014] 1 WLR 3296
Brazilian law on succession and representation of estates.
Expert evidence
Outcomes
Defendants' application to disallow amendments based on limitation is refused.
Defendants conceded an arguable case on limitation, but this was not prejudiced by relation back.
Defendants' application for relief from sanctions is refused.
No good reason for delay; prejudice to Claimants outweighs prejudice to Defendants.
Claims brought by deceased persons are struck out.
Claims brought in the name of a deceased person are nullities that cannot be cured by amendment.
Claims requiring English grants of representation are struck out unless amended.
English law governs title to sue; claims brought before transfer of litigation rights in Brazil are considered administration of the estate.
Claims lacking claimant authority (assignments, powers of attorney) are struck out or dismissed.
Analysis based on Brazilian law regarding assignment of rights and concurrent standing of heirs.
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